Friday, May 09, 2014

This undated family photo
shows Hong Yen Chang. Chang was an Ivy League graduate thought to be the first
Chinese-born, United States-trained lawyer when the California Supreme Court
denied his application to practice law in a 1890 decision. Now, students at a
Northern California law school hope to persuade the current court to reverse the
124-year-old decision that is still studied in law schools. (AP Photo/Chang
Family)

Under the heading of “better late than never,” or
“posthumous justice,” is this news story from the UC Davis School of Law and the Asian Pacific American Law Students Association (APALSA). [h/t John Steele at LEF] As we learn below,
while there is no California precedent for what this group of students is
seeking, in Washington and Pennsylvania a symbolic victory over the effects of
discriminatory legislation was achieved when applicants likewise excluded from
their respective state bars were posthumously admitted. After the story of Hong
Yen Chang I’ll share an analogous case of posthumous symbolic justice from South
Africa. However, the South African case does not involve a denial of the
opportunity to practice law (Chang himself was admitted to the New York State
bar before being denied the right to gain a license to practice after moving to
California), but rather a scenario in which activist lawyers (often communists) disbarred or struck from the roll of attorneys and advocates while fighting apartheid, were later (in the post-apartheid era) reinstated to the bar.

More than a
century after a New York lawyer was denied the opportunity to practice law in
California because of state laws that barred Chinese immigrants from most
careers and opportunities, UC Davis law students are seeking his posthumous
admission to the California State Bar.

The students in
the UC Davis School of Law Asian Pacific American Law Students
Association (APALSA) are asking the State Bar of California, and
eventually the California Supreme Court, to admit Hong Yen Chang, who was denied
a license to practice law in California in 1890.

Chang attended
Yale as part of the Chinese Educational Mission, a pioneering program initiated
by the Chinese government. He then left the United States and later
returned on his own to study law. He earned a degree from Columbia Law School in
1886 and sat for the New York bar exam by special act of the legislature. When he was admitted to the New York state
bar, The New York Times reported that
Chang was the first Chinese immigrant admitted to any bar in the United
States. In 1890, he came to
California with the intention of serving San Francisco’s Chinese community as an
attorney.

At that time,
the federal Chinese Exclusion Act banned Chinese immigrants from naturalizing as
citizens, and a California law prohibited noncitizens from practicing law in the
state. Taken together, these laws made it
impossible for people of Chinese descent to earn law licenses in the state.
Chang petitioned the California Supreme
Court, but was denied admission.

He went on to a
distinguished career in banking and diplomacy, but his story was not
forgotten. Now, the students are seeking a symbolic
victory on behalf of Chang and others who suffered as a result of laws that
discriminated against the Chinese.

‘Admitting Mr.
Chang would be a powerful symbol of our state’s repudiation of laws that singled
out Chinese immigrants for discrimination,’ said Gabriel ‘Jack’ Chin, a
professor at UC Davis School of Law and APALSA’s faculty adviser on the
project. ‘At the time Chang was
excluded from the practice of law in California, discrimination against Chinese
persons was widespread. Congress prohibited all Chinese immigration. Even the California Constitution dedicated
an entire article to restricting the rights of Chinese
residents.’

The UC Davis
School of Law California Supreme Court Clinic is representing APALSA in the
case. It has formally requested the State Bar to
support the project and will file a petition with the California Supreme Court
seeking Chang’s admission this semester. The clinic, the first and only law school
clinic of its kind, represents parties and amici in a wide range of both civil
and criminal matters pending before the California Supreme Court.

Other states
have posthumously admitted applicants who were excluded from their respective
bars based on similar discriminatory laws. In 2001, the
Washington Supreme Court admitted Takuji Yamashita, a Japanese immigrant who had
been refused admission to the profession in 1902. And in 2010, the Pennsylvania Supreme Court
posthumously admitted George B. Vashon, an African American who had been denied
admission in 1847 because of race.

Chang’s
descendants remain in the San Francisco Bay Area, including grandniece Rachelle
Chong, the first Asian American to serve as a commissioner of the Federal
Communications Commission and of the California Public Utilities
Commission. ‘In my generation, our family is extremely
fortunate to have three lawyers admitted to the California State Bar: my cousins
Suzanne Ah Tye, Kirk Ah Tye, and myself,’ said Chong. ‘It would be fitting and right to have my
granduncle’s exclusion reversed by the California Supreme Court to ensure that
justice, albeit late, is done. Our family is honored that the UC Davis APALSA
students have taken up the issue of righting a terrible wrong.’

‘From its inception
more than 40 years ago, UC Davis School of Law has been dedicated to the ideals
of social justice and equality espoused by Dr. Martin Luther King Jr., for whom
our law school building is named,’ said Dean Kevin R. Johnson. ‘This effort by our students and faculty to
admit Hong Yen Chang to the California State Bar stands strongly within that
tradition and is deserving of support.’

While readers may know that Nelson Mandela and Oliver Tambo were prominent lawyers, there were more than a few others, including Bram Fischer, Joe Slovo, Lewis Baker, Albert “Albie” Louis Sachs (in 1994, appointed
to the Constitutional Court of South Africa), and Shun Chetty, the first three
also members of the South African Communist Party (SACP). In fact, most of these
lawyers (including, arguably but I suspect correctly, Mandela) were also
communists, and thus their appreciation of the democratic rule of law and later
commitment to Liberal constitutionalism serves to counter common assumptions and
shibboleths about communists and their putative historic and universal disdain
for, or failure to appreciate the true nature of, both democracy and Liberal
constitutionalism. Mention should also be made of a handful of South African
government jurists during the rule of apartheid, most notably South Africa’s
former judge, Richard J. Goldstone.*

Following the 1994 elections in South Africa, a
“Restoration of Enrolment of Certain Legal Practitioners Bill” had been in the
works, aimed at figures like Bram Fischer, Shun Chetty and Lewis Baker who were
disbarred or struck off the roll of attorneys for various reasons that arose out
of their activist political opposition to apartheid. On October 28, 2002, the
Reinstatement of Enrolment of Certain Deceased Legal Practitioners Act was
passed into law by the Parliament and later signed by the President. The Bill
reads as follows:

* * * To provide for the reinstatement of the
enrolment of certain deceased legal practitioners who were struck off the roll
of advocates or attorneys as a result of their opposition to the previous
political dispensation of apartheid or their assistance to persons who were
opposed to the said apartheid dispensation; and to provide for matters connected
therewith.

PREAMBLE

WHEREAS it is appropriate to honour the memory of those
legal practitioners who made a contribution to the opposition to the previous
political dispensation of apartheid, or who assisted persons who were so
opposed, and who were struck off the roll on account of such opposition or
assistance;

AND IN ORDER TO redress the injustices of the past by
restoring the professional status of those legal practitioners who were so
removed during the apartheid dispensation,

BE IT ENACTED by the Parliament of the Republic of South
Africa, as follows:

Reinstatement on
roll of advocates or attorneys

1. (1) Despite the provisions of the Admission of
Advocates Act, 1964 (Act No. 74 of 1964), and the Attorneys Act, 1979 (Act No.
53 of 1979), the name of any deceased person who was removed from the roll of
advocates or attorneys prior to 27 April 1994, may, upon application brought by
a member of such deceased person’s family or, after consultation with the
deceased person’s family, by (a) the General Council of the Bar of South Africa;
(b) the Bar Council concerned; (c) the
Society of Advocates concerned; (d) the Law Society of South Africa; (e) the law
society concerned; or (f) any other interested person, to any High court, be
reinstated to the roll of advocates or attorneys, as the case may be, if the
court is satisfied that the conduct that led to that person’s name being removed
from the roll in question was directly related to that person’s opposition to
the previous political dispensation of apartheid and to bringing about political
or constitutional change in the Republic, or to assisting persons who were
likewise opposed to the said apartheid dispensation.(2) If a High Court orders that the name of a person be
reinstated as contemplated in subsection (1)-(a) to the roll of advocates, the
registrar of the Court must forthwith forward a certified copy of that order to
the Director-General: Justice and Constitutional Development, who must enter a
reference to that order opposite the name of the person in question; or (b) to
the roll of attorneys, the registrar of the Court must enter a reference to that
order opposite the name of the person in question in the registers kept by him
or her for that purpose and forward certified copies of that order to the
registrars of the other High Courts and the registrars of deeds appointed in
terms of the Deeds Registries Act, 1937 (Act No. 47 of 1937), who, in turn, must
enter a reference to that order opposite the name of the person in question in
the registers kept by them for that purpose.

Names of
reinstated persons to be submitted to Parliament

2. The Cabinet member responsible for the administration
of justice must cause the name of any person who was reinstated to the roll of
advocates or attorneys in terms of section 1 to be submitted to
Parliament.

3. This Act is called the Reinstatement of Enrolment of
Certain Deceased Legal Practitioners Act, 2002.” * * *

Bram Fischer, a remarkable (communist) anti-apartheid
activist and lawyer, was in 2003 the first South African ever to be posthumously
reinstated to the bar. Both Lewis Baker and Shun Chetty were reinstated to the
roll of attorneys by the Pretoria High Court, the former in September 2005, and
the latter, September 2006. In a future post I will discuss the life and work of
these and other activist (or ‘cause’) lawyers in the struggle against apartheid
in South African history.

* As it says in the Wikipedia entry on Goldstone, “He was
one of several liberal judges who issued key rulings that undermined apartheid
from within the system by tempering the worst effects of the country's racial
laws. Among other important rulings, Goldstone made the Group Areas Act – under
which non-whites were banned from living in ‘whites only’ areas – virtually
unworkable by restricting evictions. As a result, prosecutions under the act
virtually ceased.

During the transition from apartheid to multiracial
democracy in the early 1990s, he headed the influential Goldstone Commission
investigations into political violence in South Africa between 1991 and 1994.
Goldstone’s work enabled multi-party negotiations to remain on course despite
repeated outbreaks of violence, and his willingness to criticise all sides led
to him being dubbed ‘perhaps the most trusted man, certainly the most trusted
member of the white establishment’ in South Africa. He was credited with playing
an indispensable role in the transition and became a well-known public figure in
South Africa, attracting widespread international support and interest.”

Although the transition in South Africa might be fairly
characterized as “peaceful” in broad historical and comparative terms, there was
in fact a considerable amount of violence, the bulk of which was not committed
by the ANC’s armed wing, Umkhonto weSwize (‘Spear of the Nation,’ or ‘MK’ as it
was commonly known). From February 1990 to April 1994, roughly 14,000-15,000
people died as a result of such violence. As Janet Cherry points out, “more
people died in the four-year transition, after MK had suspended its armed
struggle, than in the preceding three decades.”

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